David Dunn, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionMay 11, 2007
0420060037 (E.E.O.C. May. 11, 2007)

0420060037

05-11-2007

David Dunn, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.


David Dunn,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area),

Agency.

Petition No. 0420060037

Request No. 05A20097

Appeal No. 07A10044

Agency No. 4D-270-0015-98

DECISION ON A PETITION FOR ENFORCEMENT

On March 16, 2006, the Equal Employment Opportunity Commission (EEOC or

Commission) docketed a petition for enforcement to examine the enforcement

of an order set forth in David Dunn v. United States Postal Service,

Request No. 05A20097 (November 13, 2002). This petition for enforcement

is accepted by the Commission pursuant to 29 C.F.R. � 1614.503. Among

other items, petitioner alleged that the agency failed to fully comply

with the Commission's order to pay him appropriate back pay with interest

and other damages for the period from July 19, 1997 through January 16,

1999, as well as past pecuniary damages in the amount of $3,808.80 for

mileage from the years 2001 and 2002, with interest.1

Petitioner filed a complaint in which he alleged that the agency

discriminated against him on the basis of sex (male) in violation of Title

VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �

2000e et seq. Petitioner appealed the agency's final decision to the

Commission, and in Appeal No. 07A10044 and Request No. 05A20097, the

Commission found that there was no basis to disturb the Administrative

Judge's (AJ) finding of discrimination on the basis of sex. As such,

the Commission ordered the agency, in part, to give petitioner back pay

and other benefits for the period from July 18, 1997 through January 16,

1998, with interest, as well as paying petitioner compensatory damages

in the amount of $1,500.00. The order also specified that the agency

had to offer petitioner the next available carrier position in the Troy,

North Carolina Post Office or at another post office in the Greensboro,

North Carolina District which was agreeable to petitioner. Pursuant to

petitioner's request for reconsideration, the Commission ordered the

agency to reimburse petitioner for his mileage between his home and

the Ramseur, North Carolina Post Office, for a total of $6,199.20.

In addition, the Commission stated that the period for petitioner's back

pay was to be from July 18, 1997 to January 16, 1999. See Dunn v. USPS,

EEOC Request No. 05A20097 (February 28, 2002). Petitioner then filed

his first petition for enforcement, alleging that the agency failed

to comply with the Commission's order as set forth in our Decision on

Request for Reconsideration. Petitioner's counsel alleged that petitioner

had not been offered an appropriate position by the agency, nor had he

been provided with back pay or reimbursement for mileage as stated in

our previous order.

The Commission reminded the agency of its obligation to provide petitioner

with back pay for the period from July 18, 1997 through January 16, 1999,

with interest and all other benefits pursuant to 29 C.F.R. � 1614.501.

Further, the Commission reminded the agency of its obligation to pay

petitioner non-pecuniary damages in the amount of $1,500.00, and past

pecuniary damages in the amount of $6,199.20 for mileage. In addition,

in light of the agency's failure to comply with the Commission's

orders in our initial decision dated August 15, 2001 and our decision

on reconsideration dated February 28, 2002, the Commission found that

petitioner was entitled to an award of interest on the payment of

$1,500.00 for compensatory damages, commencing August 15, 2001 until

the date the agency issues a check in the applicable amount. See April

v. Department of Agriculture, EEOC Appeal No. 01963775 (June 9, 1997)

(the Commission awarded interest on proven compensatory damages where the

complainant timely submitted the claim, but the agency took no action

on the claim for some 20 months). In light of the agency's failure to

comply with the Commission's Orders in our decision on reconsideration

dated February 28, 2002, the Commission also found that petitioner was

entitled to an award of interest on the payment of $6,199.20 for mileage,

commencing February 28, 2002 until the date the agency issues a check

in the applicable amount.

On March 16, 2006, petitioner submitted the petition for enforcement

at issue. Petitioner contends that the agency failed to comply with the

Commission's prior order by: (1) not paying him back pay for the year

of 1998; (2) not paying him an additional $3,808.80 for reimbursement

of travel expenses incurred in 2001 and 2002; (3) not paying him

an additional 23% above evaluated pay to reflect actual earnings he

missed; (4) not paying $1,750.00 reimbursement for attorney's fees;

(5) interest on the above sums; (6) not crediting him with 6.88 days of

annual leave and 6.88 days of sick leave, in addition to leave owed to

him for the omitted year of 1998; (7) not paying for medical treatment

and medication he needed due to the agency's actions; and (8) not paying

him a reasonable amount of compensation for the additional expense,

time, aggravation and distress caused to him for delay.

Initially, we note that our order in Request No. 05A20097 stated that

petitioner should be given appropriate back pay for the period from

July 18, 1997 through January 16, 1999, with interest, and all other

benefits pursuant to 29 C.F.R. 1614.501. A review of back pay information

provided by the agency reflects that petitioner was given back pay for

the period from July 18, 1997 through January 16, 1998 with interest and

other benefits. However, we note that while the Commission's initial

decision finding discrimination stated that petitioner would be given

back pay through January 16, 1998, the Commission's decision pursuant

to petitioner's request for reconsideration and initial petition for

enforcement stated that the period for petitioner's back pay was to

be from July 18, 1997 to January 16, 1999. The agency's back pay

computations detailed that petitioner began receiving back pay and

interest as of August 8, 1997 through January 23, 1998, and back pay

was stopped between the period starting February 6, 1998 and January

22, 1999. The agency resumed calculation of petitioner's back pay with

interest on February 5, 1999 through April 1, 1999. The agency's back

pay calculations dated May 16, 2003 indicated that petitioner received

$72,062.812 in adjusted gross back pay plus interest. We note that our

Order stated that petitioner should receive back pay plus between July

18, 1997 and January 16, 1999. As such, to the extent that the agency

failed to pay petitioner back pay between January 16, 1998 and January 16,

1999, the agency is directed to pay petitioner back pay plus appropriate

interest for the relevant period at issue.

Addressing petitioner's allegations regarding the additional $3,808.80

in reimbursement in travel expenses, we note that our previous Decision

on a Petition for Enforcement stated that the agency shall issue to

petitioner past pecuniary compensatory damages in the amount of $6,199.20

for mileage, with interest. The Commission's prior decision ordered the

agency to reimburse petitioner for his mileage between his home and the

Ramseur, North Carolina Post Office, after the period when petitioner

was discriminatorily not selected for a carrier position at the Troy,

North Carolina Post Office and was required to commute to the Ramseur

Post Office. Petitioner alleged that the Commission's Order reflected

an award for mileage only through the year 2000, and he incurred an

additional $3,808.80 in mileage expenses for the years 2001 and 2002.

We note that the record indicates that the agency did not comply with

the Commission's initial order dating from 2002, and thus petitioner was

not placed in an appropriate position until early 2003. There appears

to be no dispute between the parties that the agency paid petitioner the

entire sum which was ordered by the Commission to be paid for mileage,

with interest. However, to the extent that the agency failed to comply

with our order regarding placement in an appropriate position, and

petitioner continued to incur expenses in 2001 and 2002 for mileage, we

order the agency to reimburse petitioner for his mileage, with interest

during this period. Petitioner shall submit documentation to the agency

demonstrating that he incurred the relevant mileage during the period

the agency failed to comply with the Commission's order in 2001 and 2002.

Petitioner alleges that the agency failed to reimburse him the amount

of $1,750.00 for attorney's fees. We note that our prior Decision

stated that pursuant to 29 C.F.R. � 1614.501(e), an award of attorney's

fees shall be paid by the agency. The attorney is required to submit a

verified statement of fees to the agency -- not to the Equal Employment

Opportunity Commission, Office of Federal Operations -- within thirty

(30) calendar days of this decision becoming final. The agency is then

required to process the claim for attorney's fees in accordance with 29

C.F.R. � 1614.501. Thus, to the extent that petitioner was to be paid

$1,750.00 for attorney's fees, which the agency has not paid, we note

that petitioner must submit the verified statement of fees to the agency,

and the agency shall process the claim for attorney's fees in accordance

with 29 C.F.R. � 1614.501.

However, the Commission must deny petitioner's contentions regarding the

agency's calculation of back pay, annual and sick leave, medical treatment

and medication needed by petitioner due to the agency's actions and

additional compensation. Initially, the Commission notes that it finds

no basis to support petitioner's contention that the agency should pay

him an additional 23% above his evaluated pay to reflect actual earnings

he missed between 1997 and 1999, when he was not employed at the Troy,

North Carolina Post Office. A review of the record indicates that

the agency provided documentation for the back pay award and interest

which was paid to petitioner. The agency calculated the back pay award

based on the salary petitioner would have earned as a carrier at the

Troy, North Carolina Post Office or at a comparable post office in the

Greensboro, North Carolina District, with a contractual increase from

May 18, 2002 included. We find that it is too speculative to concur

with petitioner's allegation that he should be awarded back pay for the

evaluated pay he would have earned, rather than the actual earnings he

would have earned had he not been discriminated against by the agency

and been hired as a carrier at the Troy, North Carolina Post Office.

In addition, we cannot agree with petitioner's allegation that the

Commission must order the agency to credit him with 6.88 days of annual

leave and 6.88 days of sick leave, in addition to the leave he should have

been entitled to for the omitted year of 1998.3 In so finding, we note

that none of the Commission's previous decisions regarding remedies for

petitioner's allegations of discrimination ordered the agency to restore

annual or sick leave to petitioner, and thus we decline to address the

issue of restoration of annual or sick leave in the instant decision.

Further, we find there is no basis to conclude that complainant has

proven that he is entitled to restoration of annual or sick leave as

make-whole relief due to his discriminatory termination from the Troy,

North Carolina Post Office.

Finally, we decline to address petitioner's contention that he should

also be compensated by the agency for medical treatment and medication

caused by the agency's actions, nor will we address his contention that

he should receive compensation for distress caused by the agency's delay.

We find petitioner has failed to proffer any evidence which establishes

that he incurred expenses for medical treatment or other expenses caused

by the agency's actions, and we previously ordered the agency to pay

petitioner $1,500.00 in non-pecuniary compensatory damages due to the

agency's act of discrimination.

ORDER

1. To the extent it has not already done so, petitioner shall be

given appropriate back pay for the period from July 18, 1997 through

January 16, 1999, with interest, and all other benefits pursuant to 29

C.F.R. � 1614.501. Petitioner shall cooperate in the agency's efforts

to compute the amount of back pay owed and shall provide all relevant

information requested by the agency. If there is a dispute regarding

the exact amounts owed by the agency, the agency shall issue a check to

the petitioner for the undisputed amount within thirty (30) calendar

days of the date the agency determines the amount it believes to be

due. Petitioner may petition for enforcement or clarification of the

amounts in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled "Implementation of the Commission's Decision."

2. To the extent it has not already done so, within thirty (30) days of

the date this decision becomes final, the agency shall issue to petitioner

past pecuniary compensatory damages in the amount of $6,199.20 for

mileage, with interest. The agency shall also issue to petitioner past

pecuniary damages for mileage, with interest, for the years of 2001 and

2002, during the time petitioner was employed at the agency's Ramseur,

North Carolina Post Office. Petitioner shall cooperate in the agency's

efforts to compute the amount of past pecuniary compensatory damages

owed and shall provide all relevant information requested by the agency

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant

in the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_____5/11/07_____________

Date

1 Due to a new data system, this case has been redesignated with the

above-referenced petition number.

2 We note that the calculation of back pay plus interest indicates

$119,060.40 in gross back pay, offset by $59,117.66 in adjusted gross

back pay and $12, 945.15 in interest.

3 Complainant apparently alleges in the petition for enforcement that he

is entitled to leave restoration for the period between July 18, 1997 and

January 16, 1999. However, we note that none of the Commission's prior

decisions have found that complainant was entitled to leave restoration as

a remedy for the agency's act of discrimination, and as such we decline

to order leave restoration in the instant decision. In so finding, we

note that while we found complainant was discriminated against by not

being selected for a position at the Troy, North Carolina Post Office,

there is no evidence that complainant lost any annual or sick leave due

to the agency's act of discrimination.

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0420060037

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0420060037